Christie & Galipo

Case [2021] FedCFamC1A 88

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1) APPELLATE JURISDICTION

Christie & Galipo [2021] FedCFamC1A 88

Appeal from: Galipo and Galipo and Christie [2021] FCWA 140
Appeal number(s): WEA 19 of 2021
File number(s): PTW 320 of 2020
Judgment of: MCCLELLAND DCJ, WATTS & CHRISTIE JJ
Date of judgment: 17 December 2021
Catchwords: FAMILY LAW – APPEAL – CHILDREN – Where the children’s parents are deceased – Where the maternal uncle appeals from a discretionary judgment – Capacity of the paternal grandparents to care for the children – Where the children have formed a primary attachment with the paternal grandparents – Where the result of the orders is international relocation – Adequacy of reasons – Weight challenges – No error is established – Appeal dismissed.
FAMILY LAW – APPEAL – COSTS – Where there is an application for costs against the ICL – The ICL is to be treated as being unfunded and an impecunious party – Where the ICL’s conduct of the case is to be viewed in the context of the ICL’s role and statutory duties – Jurisdiction to exercise costs against the ICL should be exercised cautiously so as not to impede the ICL in the conduct of his or her duties – Where the ICL’s application for costs against the costs application is dismissed.
Legislation:

Family Law Act 1975 (Cth) ss 60CC, 68LA, 117

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) Sch 3
Cases cited:

Bennett and Bennett (1991) FLC 92-191; [1990] FamCA 148

Bondelmonte v Bondelmonte (2017) 259 CLR 662; [2017] HCA 8

CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67

Celan & Celan [2021] FamCA 228

Cripps & Cripps [2002] FamCA 1502

De Roma v De Roma (2013) 49 Fam LR 226; [2013] FamCA 566

Dean & Susskind [2012] FamCA 897

Gahen & Gahen (No. 2) [2013] FamCA 936

Galipo & Anor and Christie [2021] FCWA 148

Gronow v Gronow (1979) 144 CLR 513; [1979] HCA 63

House v The King (1936) 55 CLR 499; [1936] HCA 40

Knibbs & Knibbs [2009] FamCA 840

Knight and Anor v F.P. Special Assets Ltd and Ors (1992) 174 CLR 178; [1992] HCA 28

Lenova & Lenova (Costs) [2011] FamCAFC 141

Levick v Deputy Commissioner of Taxation (2000) 102 FCR 155; [2000] FCA 674)

Lloyd and Lloyd and Child Representative (2000) FLC 93-045

Lovett & McGregor (2019) FLC 93-935; [2019] FamCAFC 253

Metwally v University of Wollongong (1985) 60 ALR 68; [1985] HCA 28

Paco & Racina and Anor [2014] FamCAFC 195

Pagliarella and Pagliarella (No. 3) (1994) FLC 92-460; [1994] FamCA 16

Re P (a child) (1993) FLC 92-376; [1993] FamCA 40

Robinson Helicopter Co Inc v McDermott (2016) 331 ALR 550; [2016] HCA 22

Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247

Sawyer & Sawyer [2015] FamCA 982

Sun Alliance Insurance Ltd v Massoud [1989] VR 8

Thorne v Kennedy (2017) 263 CLR 85; [2017]…

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Christie & Galipo [2021] FedCFamC1A 88
Case
[2021] FedCFamC1A 88
Decision Date

CaseChat Overview and Summary

The appeal concerns the care of three children following the death of their parents in a motor-vehicle accident. The paternal grandparents from Country A had travelled to Australia to assist the family at the time of the accident and were granted interim orders for parental responsibility and for the children to live with them. The uncle, a maternal family member, challenged these orders and sought parental responsibility and for the children to live with him. The primary judge dismissed the uncle’s application. The uncle appeals against those orders, and the paternal grandparents oppose the appeal. The Independent Children’s Lawyer submits the appeal should be allowed. The court had to determine whether the primary judge made any errors in exercising her discretion in favour of the paternal grandparents. The court considered the evidence regarding the paternal grandparents' health and the impact of separating the children from them. The court also examined the role and duties of the Independent Children's Lawyer and the financial circumstances of the parties. The court found no error in the primary judge's exercise of discretion and dismissed the appeal. The paternal grandparents' application for costs against the Independent Children's Lawyer was also dismissed, as the court concluded that the lawyer acted reasonably in pursuing the appeal based on their views of the children's best interests.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

By an Amended Notice of Appeal filed 20 September 2021, the uncle appeals against those orders. The paternal grandparents oppose the appeal. Consistently with her position at trial, the Independent Children’s Lawyer (“ICL”) submits the appeal should be allowed.BACKGROUND The children’s deceased parents travelled from Country A to Australia on student visas in 2010. They left Australia in July 2012. The eldest child was born in Country A in April 2013. The family returned to Australia in October 2013 and became permanent residents in January 2014. The middle child was born in Australia in December 2016 and the youngest in October 2019. The children have dual citizenship. The paternal grandmother, aged 68, had come to Australia in October 2019 and the paternal grandfather, aged 71, in December 2019, to provide assistance and spend time with the family at the time of the birth of the youngest child. They were living in the home of the deceased parents at the time of the motor-vehicle accident. As a result of the motor-vehicle accident the paternal grandparents and the children were admitted to hospital but all were discharged by mid-January 2020, except the youngest child who required surgery in February 2020. On 14 January 2020, the Family Court of Western Australia made interim orders in favour of the paternal grandparents for parental responsibility and the children to live with them. The paternal grandfather took extended leave from his job. On 17 January 2020, the uncle, aged 35, the maternal grandmother and the children’s half-brother aged 17 years (a son of the deceased mother) arrived in Australia. On 1 March 2020 the aunt, aged 28, and the cousin, then aged seven years, arrived in Australia. They commenced to reside in the family home together with the children, the paternal grandparents and the uncle. On 17 February 2020 the uncle filed a Response to Application for Final Orders. On 3 March 2020, the maternal grandmother and the children’s half-brother returned to Country A. On 14 September 2020, the aunt started employment in Town A (two and a half hours from Perth) and commenced living there between each Sunday and Thursday. The uncle remained with the children and the cousin in the family home. On 3 November 2020 the aunt suffered a head injury at work, was hospitalised twice and had several weeks off work. The uncle, aunt and cousin ceased to reside in the family home in December 2020 with the aunt and the cousin moving to Town A in January 2021. The uncle remained in Perth and, after his visa permitted to do so, commenced work there in May 2021 at company C. The hearing before the primary judge was in two tranches (eight days in January 2021 and four days in June 2021). Most of the lay witnesses gave evidence with the assistance of an interpreter. The children’s time with the uncle was extended by agreement in March 2021. The single expert, Ms F (“the single expert”) provided reports on 11 December 2020 and 12 April 2021.THE PRIMARY JUDGE’S REASONS

Evidence

Evidence Before The Court

There is no merit in Ground 1. Did the primary judge fail to consider the totality of the evidence concerning the age and state of health of the paternal grandparents? (Ground 2) The primary judge recited the ages of the paternal grandparents at [16] and [17] and discussed the health of the paternal grandparents at [399]–[416]. In that discussion, the primary judge referred to the evidence given by treating and consulting medical experts and practitioners and, in particular from Dr B, the paternal grandparents’ general practitioner; Dr C (“Dr C”), psychologist; Mr R, the paternal grandparents’ consultant orthopaedic surgeon and Ms S, treating psychologist. The primary judge discussed Dr B’s report at [410], Dr C’s report at [411] and [412]; Mr R’s report at [413] and Ms S’ report at [414]. The primary judge also referred to the opinions of the single expert, who made observations about the health of the paternal grandparents including reference to a report from Dr G, the paternal grandfather’s cardiologist. There is no direct challenge to any of the factual findings in this discussion. At [145] the primary judge found:The [paternal] grandmother denied she had depression as reported by Dr [B], although his report refers to her scores being consistent with a major depressive disorder of moderate severity. The [paternal] grandmother said that was because she was very sad having lost her son and daughter-in-law. She was not socially withdrawn after the accident. She said she did not have time to do anything, or to be by herself, she had to look after the children. Notwithstanding what was said about her recovery in the District Court proceedings the grandmother was confident she will recover completely. She said she has the [paternal] grandfather to help her and although she has some pain, at this time she does not need help. At [415] and [417] the primary judge concluded:415.The [paternal] grandmother was in good health prior to the accident. She is slowly recovering from injuries sustained in the accident and these have restricted her activities to an extent.…417.Both [paternal] grandparents have difficulties with their health which are adequately managed. These difficulties would not preclude them from caring for the children. Ground 2(a) complains that the primary judge failed to make a finding that the paternal grandmother’s position at trial was contrary to the position she put to the District Court of Western Australia (“the District Court proceedings”), namely, that she was not fully recovered and will not fully recover from her injuries. This complaint is based upon the assertion that the position taken by the paternal grandparents and particularly the grandmother as to her current and future anticipated state of health in the District Court proceedings was at odds with the position that she put in these proceedings. The paternal grandmother’s District Court proceedings were resolved on 11 May 2021 by a judgment in her favour for $80,000 plus costs (at [115]).

Decision

Reasons for decision

Her Honour then set out her conclusions (at [458]–[473]), relying heavily at [467] on the significant short-term and potential long-term impact on the children of separating them from their paternal grandparents and emphasising the benefit of the continuity of their attachment to them (at [470]–[472]).THE LAW RELATING TO APPEALS FROM A DISCRETIONARY JUDGMENT The appeal challenges the exercise of the primary judge’s discretion. It is helpful to set out the established principles on appeals from discretionary judgments. In CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) (McHugh, Gummow and Callinan JJ ) said at [152]:The evidence in residency cases is often such that the same body of evidence may produce opposite but nevertheless reasonable conclusions from different judges. It is a mistake to think that there is always only one right answer to the question of what the best interests of a child require. Each judge is duty bound to make the order which he or she thinks is in the best interests of the child. But the fact that other judges think that the best interests of that child require a different order does not necessarily prove that the first order was not in the best interests of the child. Best interests are values, not facts. They involve a discretionary judgment in respect of which judges can come to opposite but reasonable conclusions. In G v G, Lord Fraser of Tullybelton pointed out:“The jurisdiction in such cases is one of great difficulty, as every judge who has had to exercise it must be aware. The main reason is that in most of these cases there is no right answer. All practicable answers are to some extent unsatisfactory and therefore to some extent wrong, and the best that can be done is to find an answer that is reasonably satisfactory.”(Footnotes omitted) In Bondelmonte v Bondelmonte (2017) 259 CLR 662 (“Bondelmonte”) the High Court said at [32]:A parenting order made under s 65D [of the Family Law Act 1975 (Cth)] involves the exercise of a judicial discretion because it is made by reference to a paramount consideration of a general kind, the best interests of the child, which involves an overall assessment of a number of other considerations…They involve value judgments in respect of which there may be room for reasonable differences of opinion, as does the overall assessment of what is in the best interests of the child.(Footnotes omitted) In House v The King (1936) 55 CLR 499 (“House”), the plurality said at 504–505:The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in the exercise of the discretion. If the judge acts on a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.

Ratio Decidendi

Legal Principle Established

The jurisdiction to make costs orders against an ICL should be exercised cautiously. An ICL should be free, consistently with s 68LA of the Act, to form an independent view and belief of what is in a child’s best interests and to pursue them. The failure to have a view or belief vindicated should not, without more, lead to a costs order being made against an ICL. The threat of costs orders being regularly made against an ICL is likely to impede the ICL’s fulfilling of her or his role and duties.Statutory Considerations Both the uncle and the ICL were wholly unsuccessful in their core applications relating to with whom the children would live, parental responsibility and opposing international relocation. As discussed, the ICL is to be treated as being impecunious. The parties provided evidence of their financial circumstances at trial and each filed a financial statement. The paternal grandparents had met their own legal costs on a private basis. The paternal grandfather has taken unpaid leave from the Company A whilst he waits in Australia for his case to conclude. The uncle currently has a job but does not have any significant means. Neither the uncle nor the paternal grandparents were legally aided in the appeal. Legal Aid funded the costs of the ICL at trial, including the single expert witness fees for reports and appearances, witness fees for Dr A and the reports by Ms S and did not seek that the parties contribute to the costs of the ICL for the trial or the appeal. We have discussed in general, the role and duties of the ICL. The paternal grandparents submit that the ICL conducted the appeal without making an objective assessment of the merits of the appeal having regard to the limited basis upon which this court could interfere with the discretionary decision of the primary judge (House). They point to the fact that in the stay application before O’Brien J, having discussed the grounds of appeal, his Honour concluded “my preliminary assessment is that the Uncle’s appeal does not have strong prospects of success” (Galipo & Christie at [70]). The paternal grandparents assert that the ICL’s submissions on appeal were essentially a re-agitation of the unsuccessful arguments made by the ICL and the uncle at trial and also points to other defects in the ICL’s unsuccessful submission on the appeal. Whilst there is some strength in the submission of the paternal grandparents that in this case the ICL should have adopted a different approach on the appeal to the one pursued at trial, the paternal grandparents have failed to establish that the ICL conducted the appeal in an unreasonable manner, given the views and beliefs the ICL had formed about what was in the children’s best interests. Taking into account the mandatory statutory considerations and also the tragic circumstances of this case, we have concluded that we should not exercise our discretion to make an order for costs of the appeal and the application of the paternal grandparents shall be dismissed.